NOT RECOMMENDED FOR PUBLICATION File Name: 17a0522n.06 No. 16-2769

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RICHARD ROSENBAUM, Plaintiff-Appellant,

v. TOYOTA MOTOR SALES, U.S.A., INC., Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: COLE, Chief Judge; BATCHE LDER and MOORE, Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. Appellant Richard Rosenbaum purchased a Prius Plug-In Hybrid Electric vehicle, manuf actured by Appellee Toyota Motor Sales, U.S.A., Inc. (“Toyota”). Rosenbaum was not satisfied with the hybrid vehicle because he could not complete his daily commute in electric-only mode, and the vehicle would not run in electric-only mode when the outside temperature fell below fi fty-five degrees Fahrenheit. He filed suit, raising contract, warranty, and Michigan Consum er Protection Act (“MC PA”) claims and now appeals the district court’s dismissal of two of those claims. We affirm. The Prius Plug-In Hybrid Electric is a hybrid vehicle that can run on both electric charge and gasoline, with an enhanced battery capacity to allow for extended electric-only use. On July 18, 2012, Rosenbaum purchased a Pr ius Plug-In from Page Impor ts, Inc., in Southfield, Michigan. Rosenbaum alleged that “[p]rior to [his] purchase, TOYOTA specifically represented that the fully electric range was at minimum thirteen (13) miles on its website and throughNo. 16-2769 Rosenbaum v. Toyota Motor Sales, USA

-2- various other marketing and advertising me diums and makes no mention of the limitation regarding the outdoor temperature a nd the vehicles [sic] ability to operate in certain climates.” 1 He alleged that he purchased the vehicle to drive “his 12.07 mile trip from his home to his office without using the gasoline engine.” However, after Rosenbaum’s purchase, he discovered that he could travel only eight to ten miles while usi ng the vehicle in electric- only mode and that the vehicle would not operate in electric-only mode at all when the outside temperature fell below fifty-five degrees Fahrenheit. Based on these di scoveries, Rosenbaum alleged that the “vehicle did not perform as warranted and re presented in that it has repeatedly failed to meet the specific electric mileage warranted and represented by [T oyota] due to defective parts and workmanship, as well as the ability to function in electric m ode in temperatures below fifty-five (55) degrees Fahrenheit.” Rosenbaum filed a purported class action suit agai nst Toyota in the United States District Court for the Eastern District of Michigan, alleging three claims: (1) breach of contract; (2) breach of express and implied warranties of merchantability; and (3) violation of the MCPA. The district court dismissed the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court concluded that Rosenbaum failed to state a claim for breach of contract or breach of express warranty because Rosenbaum failed to alle ge that he was in privity with Toyota. The district court also found that Rosenbaum had faile d to state a claim that Toyota had breached the implied warranty of merchantability, because he di d not allege facts showi ng that the Prius PlugIn was unfit for its ordinary purpose. Specificall y, the district court determined that Rosenbaum had failed to state a claim because he did not a llege facts regarding the average quality of the

1 Rosenbaum also alleged in his complaint that Toyota “co nducted a marketing campaign st ating that the Prius PlugIn can operate for up to thirteen ( 13) miles on a full charge.” It ther efore appears that Rosenbaum received conflicting information about the vehicle. However, as this matter is before us on review of an order granting a motion to dismiss, we accept Ro senbaum’s factual allegations as true a nd view the complaint in the light most favorable to him. See Moody v. Mich. Gaming Control Bd. , 847 F.3d 399, 402 (6th Cir. 2017).No. 16-2769 Rosenbaum v. Toyota Motor Sales, USA

-3- vehicle in the industry or that his vehicle was below average quali ty. Finally, the district court determined that Toyota’s alleged conduct was ex empt from the MCPA because federal and state law “specifically authorized” and governed Toyota’s advertisements. See Mich. Comp. Laws § 445.904(1). Rosenbaum then filed a motion for relief fr om judgment under Federal Rule of Civil Procedure 60(b)(1) on his claim for breach of th e implied warranty of merchantability, raising new arguments directed, not toward merchantab ility, but toward the hy brid vehicle’s unique purpose and the circumstances of his purchase of the vehicle. The district court denied Rosenbaum’s motion for relief, explaining that these new arguments were irrelevant to his implied warranty-of-merchantability claim. Inst ead, the district court explained, such arguments were more appropriate for a claim for breach of the implied warranty of fitness for a particular purpose—a claim that Rosenbaum had not alleged in his complaint. Rosenbaum timely appealed the district court’s dismissal order an d order denying the motion for relief. We review for abuse of discre tion a district court’s denial of a Rule 60(b) motion for relief from judgment, and our review does not en compass the merits of the underlying judgment.
See Jinks v. AlliedSignal, Inc. , 250 F.3d 381, 385 (6th Cir. 2001). “Rule 60(b) does not allow a defeated litigant a second chance to convince the court to rule in his or her favor by presenting new explanations, legal theories, or proof.” Id. (citation omitted). On appeal, Rosenbaum repeats the arguments regarding the hybrid vehicle’s unique purpose and the circumstances of his purchase th at he raised in his Rule 60(b)(1) motion. Rosenbaum, however, has neither argued nor demonstrated any basis on which we could conclude that the district cour t erred in its determination that Rosenbaum’s new arguments did not support a merchantability claim and that Rose nbaum had never pled a fitness-for-particular-No. 16-2769 Rosenbaum v. Toyota Motor Sales, USA

-4- purpose claim. Nor has he provided any other ba sis for a conclusion that the district court abused its discretion in denying his Rule 60(b)(1) motion. We th erefore consider Rosenbaum’s appeal of the order denying hi s motion for relief waived. See Langley v. DaimlerChrysler Corp. , 502 F.3d 475, 483 (6th Cir. 2007). Moreover, on the merits of Rosenbaum’s Rule 60(b)(1) arguments, th e district court did not err. The implied warranty of merchantability is distinct from the implied warranty of fitness for a particular purpose under Michigan law. See Mich. Comp. Laws § 440.2314 (detailing the implied warranty of merchantability); Mich. Comp. Laws § 440.2315 (describing the separate implied warranty of fitness for a particular purpose); Bosway Tube & Steel Corp. v. McKay Mach. Co. , 237 N.W.2d 488, 490–91 (Mich. Ct. App. 1975). Rosenbaum did not allege a claim for breach of the warranty of fitness for a part icular purpose. Accordingly, we find that the district court did not abus e its discretion by rejecting Rosenbaum’s arguments. To the extent that Rosenbaum has properly presented other arguments, those arguments are meritless. After carefully reviewing the record, the applicable law, and the parties’ briefs, we are convinced that the district c ourt did not err in its conclusions . The district court’s orders carefully and correctly set out the law governing the issues raised and clearly articulate the reasons underlying its decisions. Thus, issuance of a full written opinion by this court would serve no useful purpose. Accord ingly, for the reasons st ated in the district court’s orders, we affirm.